Appeal from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge.
Vacated by Order of the Court May 31, 1991. Order
Before Rogers, Chief Judge, and Belson and Steadman, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: Appellant appeals from his conviction of simple assault, D.C. Code § 22-504 (1989 Repl.), on the principal ground that the trial Judge erred in ruling that a statement made by a Washington Metropolitan Area Transit Authority (WMATA) bus driver to his supervisor was not a Jencks *fn1 statement which the government was required to produce upon demand by the defendant. We hold that the statement by the government's key witness was subject to production by the government as Jencks material, and to assist in our determination of harmlessness, Davis v. United States, 564 A.2d 31, 41-42 (D.C. 1989) (en banc), we direct the trial court to certify the recorded transmission containing the bus driver's statement to this court.
Appellant and his brother, Kevin Fleming, were found guilty of assaulting Tyrone Brady, a nine-year veteran bus operator for WMATA, while he was driving a group of students home from high school around 3 p.m. Brady testified that appellant and Fleming failed to pay their bus fares after being repeatedly asked to do so. *fn2 When the students on the bus became very rowdy, Brady concluded that it was no longer safe to continue driving the bus. *fn3 He, therefore, called his supervisor to advise him of the situation. When Brady stopped the bus, Fleming approached him and, with appellant by his side, threatened Brady verbally. Brady responded by getting out of the driver's seat and warning the group that he knew karate. He told Fleming and appellant to either pay their bus fares or leave the bus. As they were leaving, appellant punched Brady in the face and Fleming kicked Brady in the torso. Both left the scene immediately.
During direct examination, Brady testified that he called "dispatch" when the students became rowdy to advise "what the situation was," and that he was stopping the bus. The prosecutor subsequently asked Brady whether he had reported the assault. Brady responded, "Yes, I did," and that the METRO police *fn4 and a METRO supervisor came to the scene. During cross-examination, defense counsel asked Brady whether there was a walkie-talkie or some sort of radio on the bus. Brady said there was and that he had radioed his supervisor, commenting that all transmissions from the bus by METRO telephone are recorded. At the bench, the following exchange took place:
MS. HINKES: Your Honor, apparently, the witness testified that transmissions are made.
THE COURT: Did you subpoena them? *fn5
MS. HINKES: I didn't know that such transmissions existed.
MS. HINKES: This would be Jencks in any case.
[COUNSEL FOR FLEMING]: I thought the Court of Appeals ruled that WMATA is a government agency, and it ...